What Doesn’t Work: While driving home from the New Year’s Eve party, demonstrating to the police car behind you that you are fully capable of operating a vehicle by driving slalom in and out of the dotted white lines: “Don’t worry honey, I know exactly how to handle this.”

What Works: Never driving “buzzed.”  Most people cannot tell when their own blood alcohol is above the legal limit.  If they feel okay and haven’t had many drinks, they will often decide it is okay to drive.  But even when you don’t feel drunk and you haven’t had very much to drink other factors can put you over the limit.  For example, if you weigh less than average and haven’t had anything to eat in the last couple of hours, two drinks can push your BAC over the legal limit. Also, if you feel fine when you get behind the wheel, you’re blood alcohol can continue increasing as you drive home.  Or, if you’re on certain types of medication, that can intensify the negative effects of alcohol.  So, if you have been drinking it is always best to have a designated driver or call a cab.

2011 UT App 211
Filed June 30, 2011
Per Curiam Decision

The Utah Court of Appeals held that the defendant could not withdraw his guilty pleas on the grounds that they were not given voluntarily because factual findings indicated that he did give them voluntarily and because he did not provide an adequate record for the appellate court to review.

The trial court denied Mr. Nielsen’s motion to withdraw his two guilty pleas and Mr. Nielsen appealed to the Utah Court of Appeals. Mr. Nielsen argued that his guilty pleas were not voluntary because his mental illness makes him prone to give in to the influence of others.

The Court of Appeals denied Mr. Nielsen’s appeal for two reasons. First, in a two day evidentiary hearing on the motion, the trial court made factual findings that indicated that Mr. Nielsen pleas were voluntary: (1) His therapist testified that he was not manic at the time he made the pleas or in the following weeks. (2) Mr. Nielsen testified that after meeting for two hours with his lawyers the evening before he still had not decided whether to plead guilty. (3) At the hearing he was not confused, he readily responded to questions, and he interrupted to correct factual misstatements by the prosecutor.

Second, Mr. Nielsen did not provide the Court of Appeals with an adequate factual record from which to review the trial court’s decision. He provided a transcript from the first day of the hearing but not from the second, and the trial court based much of its decision on testimony from the second day. The defendant has the burden to provide an adequate record, and if he does not the appellate court will presume the regularity of the proceedings below.

2011 UT App 229
Filed July 21, 2011

The Utah Court of Appeals affirmed the trial court’s decision to impose consecutive rather than concurrent sentences after the defendant pleaded no contest to three counts of sexual abuse of a child.

Mr. Epling was charged with two counts of sodomy upon a child and four counts of aggravated sexual abuse of a child after his stepson revealed in an interview with the Provo Children’s Justice Center that his stepfather had been sexually abusing him over a two year period. Mr. Epling eventually pleaded no contest to three counts of sexual abuse of a child. At the sentencing hearing the court heard arguments from the State and from Mr. Epling’s criminal defense attorneys as well as testimony from the stepson’s uncle and guardian, who testified as to how the abuse had negatively affected the child, and from Mr. Epling’s former employer, who said that in spite of Mr. Epling’s alcohol problems and lack of emotion he would trust him with his own children. The trial court also had access to Mr. Epling’s presentence investigation report (PSI), which contained the results of a polygraph test, and psychosexual evaluation. After considering the evidence, the trial court sentenced Mr. Epling to three consecutive sentences of fifteen years in prison. Through his criminal defense attorneys, Mr. Epling appealed to the Utah Court of Appeals. The court of appeals upheld the trial court’s sentencing decision for the following reasons:

• The trial court considered all of the statutory factors.
  In deciding whether sentences will run concurrently or consecutively, a trial court is required to “consider the gravity and circumstances of the offense, the number of victims, and the history, character and rehabilitative needs of the defendant.” The trial court’s findings on each of these considerations do not have to be on the record as long as “it would be reasonable to assume that the court actually made such findings.” Such was the case here. The trial court’s reference to Mr. Epling’s involvement with ****ography indicated that the court had read the psychosexual report. The trial court’s reference to the CJC video indicated that the court had considered the gravity and circumstances of the offenses. In regards to number of victims, the stepson indicated in the CJC video that he had seen Mr. Epling sexually abuse his half-brother. With regards to Mr. Epling’s rehabilitation, both the criminal defense attorneys and the prosecution had argued the issue before the court. The court determined that based on Mr. Epling’s refusal to take responsibility for the crimes he was not amenable to treatment. Mr. Epling’s criminal defense attorneys argued on appeal that the trial court had stated that it was unaware whether Mr. Epling had taken a polygraph test, information which was included in the PSI. The court of appeals was unpersuaded by this argument because the results of a polygraph test are not a statutory factor that the trial court must consider.
• The trial court was not required to consider Mr. Epling’s claims of innocence in determining his sentence.
  Mr. Epling maintained through sentencing that he was innocent. However, Mr. Epling was repeatedly warned and understood that by pleading “no contest” he was admitting that he had committed the crimes with which he was charged. Therefore, the trial court had no obligation to consider whether he was in fact innocent.
• There was no reason the trial court should not consider Mr. Epling’s involvement with ****ography. Mr. Eplings’s criminal defense attorneys argued that Mr. Epling’s involvement with ****ography could not properly be considered in the court’s determination of his sentence because, as he did not admit to viewing illegal child ****ography, all of his behaviors with regards to ****ography were legal. The court of appeals was unconvinced, holding that there is no law or policy that prevents a trial court from taking into consideration a defendant’s legal activities.
• The trial court did not exceed its discretion by imposing consecutive rather than concurrent sentences.
  A trial court exceeds its discretion when it does not consider the statutory factors, imposes a sentence that exceeds the legal limits, or imposes a sentence that is inherently unfair. None of these things happened in this case. Mr. Epling would have liked the court to place more weight on the mitigating evidence presented by his criminal defense lawyers. But “[t]he fact that the trial court assessed the relevant factors differently than [he] would have liked does not mean that it exceeded its discretion.”

2011 UT 53
Filed August 30, 2011

The Salt Lake City district court ruled there was not probable cause to support the warrant under which Ms. Chanzy’s blood was drawn, but did not grant her motion to suppress the evidence, relying on a possible exception to the warrant requirements. The Utah Supreme Court reversed on the alternate grounds that there was probable cause for the warrant.

While driving in Salt Lake City, Ms. Walker’s vehicle crossed the double yellow line, sideswiping a trailer and then running head on into another vehicle. The driver of the vehicle pulling the trailer was severely injured and the driver of the second vehicle was killed. Ms. Walker was airlifted to the hospital. While investigating the accident, detectives discovered that Ms. Walker’s driver license had been revoked for alcohol violation and that she was restricted to driving vehicles with an interlock ignition. At the hospital, a homicide detective visited Ms. Walker and asked her to submit to a blood draw. Ms. Walker refused. Suspecting that Ms. Walker had been driving under the influence, the detective prepared an affidavit in support of a warrant for a blood draw which contained the following information: “(1) Ms. Walker’s vehicle crossed the center line for an unknown reason; (2) after crossing the center line, Ms. Walker’s vehicle struck two other vehicles, causing serious injury to the driver of one of the vehicles and the death of the driver of the other vehicle; (3) when Detective Adamson asked Ms. Walker about the crash, she responded that she “didn’t remember anything”; (4) a check of the Utah Criminal Justice Information System revealed that Ms. Walker’s driver license had been revoked for alcohol and that she was restricted to an interlock device until February 27, 2010; and (5) at the time of the accident, Ms. Walker was driving a vehicle owned by her boss.”1 Based on these facts, the magistrate judge issued the warrant. Ms. Walker’s blood sample contained methamphetamine and amphetamine. She was charged with three felonies.

Ms. Walker’s criminal defense attorneys filed a motion to suppress the results of the blood test, arguing that the affidavit was insufficient to support probable cause for the warrant. The judge agreed with the criminal defense lawyers that the warrant lacked probable cause, but the court did not grant the motion to suppress because it ruled that the detective who conducted the search had relied on the warrant in good faith. Ms. Walker’s criminal defense attorneys appealed the ruling to the Utah Supreme Court, arguing that the Utah does not allow for a good faith exception to the warrant requirements.

The Utah Supreme Court did not reach the question of whether Utah has a good faith
exception to the warrant requirements. Instead, the court affirmed on alternate grounds, holding that the affidavit was sufficient to support probable cause to issue the warrant: (1) Ms. Walker had a history of driving under the influence and was restricted to driving vehicles with an interlock device. (2) Her vehicle crossed the double yellow line for an “unknown reason.” (3) She could not remember the details of the accident. (4) She was driving her boss’s car, which presumably did not have an interlock ignition.

Ms. Walker’s criminal defense lawyers argued that her crossing of the double of yellow line could have been caused by any number of causes other than driving under the influence, but the Utah Supreme Court rejected this argument. A magistrate judge is not required to eliminate all possible alternatives when issuing a warrant. Rather, the judge is expected to use common sense when reviewing the facts in the affidavit.

1. State v. Walker, 2011 UT 53, ¶ 14 (internal quotation marks omitted).

2012 UT 93
Filed December 21, 2012

Mr. Ross was convicted of aggravated murder and attempted aggravated murder. His criminal defense trial attorney failed to raise an affirmative defense of extreme emotional distress, which was likely Mr. Ross’s best defense. There was insufficient evidence in the record for the Utah Supreme Court to decide whether Mr. Ross’s criminal defense appellate lawyer was ineffective for failing to raise the issue that his criminal defense trial attorney may have been ineffective for not raising the extreme emotional distress defense. The case was remanded to determine whether there had been an appellate investigation into Mr. Ross’s mental state at the time the crimes were committed.

Mr. Ross was involved in a romantic relationship with Annie Christensen. Early on the morning of June 30, 2003, Mr. Ross went to Ms. Christensen’s home and discovered her there with James May. From the way the two were dressed, it appeared that Mr. May had spent the night with Ms. Christensen. Mr. Ross began questioning Ms. Christensen, asking her to tell Mr. May when she had last had sex with Mr. Ross. When Mr. Christensen would not answer his questions, Mr. Ross pulled a gun from his waistband. When Ms. Christensen still would not answer his questions, Mr. Ross said to Mr. May. “I can’t let her hurt you like she hurt me.” He then pulled Ms. Christensen by her arm into the bedroom where he shot and killed her. Mr. May left the house running. Mr. Ross fired six shots at Mr. May, one of which passed through his arm into his chest. Mr. May was able to flag down a passing motorist who contacted the police. Mr. Ross fled the scene, leading police on a high speed chase. As he drove, Mr. Ross called Ms. Christensen’s father and told him he had just killed his daughter. He also called his boss and left a message saying that he had shot Ms. Christensen and planned to kill himself.

Mr. Ross was tried for aggravated murder and attempted aggravated murder. Mr. Ross did not dispute that he had been involved in the crimes, instead his criminal defense lawyer focused on attempting to persuade the jury that Mr. Ross was not guilty of the aggravated aspect of the charges. During an in-chambers conference with the judge at the close of the trial, Mr. Ross’s criminal defense attorney told the judge, “There was no manslaughter defense raised based on any extreme emotional disturbance because of – because of evidentiary problems as are known to Mr. Ross and myself.” The judge attempted to clarify with Mr. Ross by asking him, “[I]s that, in fact, the conversation and the strategy that you and [your criminal trial lawyer] have decided on in this case?” Mr. Ross replied that it was. Mr. Ross was convicted of aggravated murder and attempted aggravated murder. A new criminal defense attorney represented Mr. Ross on direct appeal. But the post-conviction court held that the record of the in-chambers conference conclusively demonstrated that the criminal trial lawyer’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy. The post-conviction court granted summary judgment on the appeal to the State of Utah.

Mr. Ross later filed a pro se petition for post-conviction relief. In it he claimed that his criminal defense trial attorney had been ineffective for failing to raise a defense of extreme emotional distress and that his criminal defense appellate lawyer had been ineffective for failing to raise an ineffective assistance of trail counsel claim on direct appeal. Mr. Ross argued in his motion that even though he and Ms. Christensen had not been sexually exclusive during most of their two year relationship, he had considered her the love of his life and had believed they would eventually marry. He also argued that a few days before the shooting he and Ms. Christensen had promised each other that from then on they would be in a committed, exclusive relationship. On the morning of the murder Mr. Ross had noticed that he had a missed call from Ms. Christensen and began to panic when she did not answer his attempts to call her back because on two previous occasions Ms. Christensen had called Mr. Ross for help and then didn’t answer when he called back because she had been beaten by an ex -boyfriend. Mr. Ross argued that when he went to her house he was extremely fearful for her safety. The post-conviction court granted the State of Utah summary judgment on these issues and Mr. Ross appealed to the Utah Supreme Court.

Under Utah law, there is no post-conviction relief available for claims that were raised or could have been raised at the criminal trial or on appeal. There is an exception to this rule if the claim was not raised because of ineffective assistance of criminal defense counsel. Therefore, Mr. Ross’s two claims on appeal to the Utah Supreme Court were entirely dependent on each other. The court could not consider whether Mr. Ross’s criminal defense trial lawyer was ineffective unless it first found that his criminal defense appellate attorney was ineffective. The court ruled in Mr. Ross’s favor on this question. The Utah Supreme Court disagreed with the post-conviction court’s conclusion that the record conclusively demonstrated that Mr. Ross’s criminal defense trial attorney’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy.

A successful defense of extreme emotion distress would have reduced Mr. Ross’s charges from aggravated murder to murder and attempted aggravated murder to attempted murder. The defense would have been successful if Mr. Ross’s criminal defense attorney had been able to convince the jury that Mr. Ross had killed Ms. Christensen while under the influence of extreme emotional distress and that a reasonable person would have experienced extreme emotional distress under the same circumstances. The threshold to establish this defense and make it a question for the jury is minimal.

The Utah Supreme Court found that an extreme emotional distress defense did not appear to undermine or conflict with any other strategy used by the criminal defense lawyer in Mr. Ross’s criminal trial, especially since the criminal defense trial attorney did not make an opening argument, did not cross examine most of the State of Utah’s witnesses, did not provide any evidence or witnesses explaining why Mr. Ross acted as he did, and did not request any jury instructions. The Utah Supreme Court also found that the facts in the record may have been sufficient to support Mr. Ross’s claim that he committed the crimes under the influence of extreme rage and jealously, which would satisfy the low evidentiary threshold necessary to establish an extreme emotional distress defense, making it a question for the jury. The court found it unclear from the record whether either of Mr. Ross’s criminal defense attorneys had made any investigation into additional information which would have bolstered this defense.

Additionally, the Utah Supreme Court was confused by the remarks made by the criminal defense trial lawyer during the in-chambers conference. The court found that the remarks might indicate that the criminal defense trial attorney did not understand the relevant law. The criminal defense attorney said that there could be no “manslaughter defense based on any extreme emotional disturbance.” The relevant defense is called extreme emotional distress and not “extreme emotional disturbance.” Further, a successful defense of extreme emotional distress would have reduced the charges from aggravated murder and attempted aggravated murder to murder and attempted murder, not to manslaughter. The evidence may indicate that the criminal defense lawyer was actually referencing a defense that the crimes were committed under “a delusion attributable to a mental illness,” which would have in fact reduced the charges to manslaughter. This is supported by Mr. Ross’s motion, which states that he agreed not to raise a defense of “extreme emotional disturbance” because his criminal defense lawyer had told him that his mental evaluations would not support it.

But failure of his criminal defense trial lawyer to raise what on the surface seems like it may have been Mr. Ross’s best defense does not by itself mean that his criminal defense appellate attorney was ineffective for failing to argue that his criminal defense trial lawyer was ineffective. The Utah Supreme Court remanded the case for resolution of the issue of whether the appellate attorney conducted an investigation into Mr. Ross’s mental state at the time of the crimes and what an investigation might have uncovered. Because they were unable to determine whether Mr. Ross’s criminal defense appellate counsel was infective, the Utah Supreme Court could not hold on whether Mr. Ross’s claim of ineffective assistance of trail counsel was procedurally barred.

2011 UT 59
Filed September 30, 2011

The Utah Supreme Court dismissed the petition for post-conviction relief of a man convicted of murder because his claims either should have been raised on direct appeal or were appropriately dismissed by the district court for lack of jurisdiction.

Terry Johnson was convicted of murdering his child’s baby-sitter in 2004. He was sentenced to five years to life. Mister Johnson’s criminal defense lawyer filed a motion for a new trial, alleging that evidence had been admitted in violation of the Utah Rules of Evidence. Mr. Johnson then obtained a new criminal defense attorney, who filed a supplemental motion for a new trial that alleged that Mr. Johnson’s trial lawyer had been ineffective. The trial court denied both of Mr. Johnson’s motions. Mr. Johnson and his new criminal defense attorney appealed his conviction to the Utah Court of Appeals. The Utah Court of Appeals considered each of Mr. Johnson’s claimed grounds for reversal, but ultimately affirmed his conviction. Mr. Johnson and his criminal defense lawyer then filed a petition for post-conviction relief in the Utah district court. The Utah district court dismissed all of Mr. Johnson’s claims. Mr. Johnson and his criminal defense attorney appealed the dismissal of his petition to the Utah Supreme Court.

The Utah Supreme Court affirmed the dismissal of Mr. Johnson’s petition. Under Utah’s Post-Conviction Remedies Act, ineffective assistance of counsel is grounds for post-conviction relief. However, in his petition, Mr. Johnson challenged the effectiveness of the criminal defense attorney who represented him at his murder trial. Since Mr. Johnson was represented by a different criminal defense lawyer on direct appeal, Mr. Johnson could have raised this claim as part of that direct appeal but he did not. His claim was therefore barred.

Two of Mr. Johnson’s other claims – erroneous admission of open ended jury instructions and sufficiency of the evidence to convict him at trial – had been adjudicated in the district court. These claims were likewise barred because Mr. Johnson did not raise them on direct appeal.

Finally, the Utah Supreme Court held that the Utah district court rightly dismissed Mr. Johnson’s remaining claims as frivolous. In those claims Mr. Johnson essentially asked the district court to review the decision made by the Utah Court of Appeals, which a district court does not have jurisdiction to do. Mr. Johnson’s remedy for his dissatisfaction with the Utah Court of Appeals’ decision was to petition the Utah Supreme Court for certiorari, which he had already done and which petition had been denied.